Académique Documents
Professionnel Documents
Culture Documents
381
98 S.Ct. 1117
55 L.Ed.2d 357
Respondents sued petitioner Bankers Trust Co. under 10(b) of the Securities
Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. 78j(b) (1976 ed.), for
allegedly fraudulent statements. The District Court for the Southern District of
New York dismissed the action on the ground that the fraud alleged had not
occurred "in connection with the purchase or sale" of a security, as required by
10(b). Mallis v. Federal Deposit Ins. Corp., 407 F.Supp. 7 (1975). The Court
of Appeals for the Second Circuit reversed, holding that respondents were
"purchasers [of securities] by virtue of their acceptance of [a] pledge" of stock
and that petitioner was "a seller by virtue of its release of [a] pledge." Mallis v.
Federal Deposit Ins. Corp., 568 F.2d 824, 830 (1977). We granted certiorari to
consider the correctness of these rulings of the Court of Appeals. 431 U.S. 928,
97 S.Ct. 2630, 53 L.Ed.2d 243 (1977).
Court of Appeals for the Second Circuit was correct in deciding that it had
jurisdiction in this case despite the absence of a separate judgment.
3
"Hitherto some difficulty has arisen, chiefly where the court has written an
opinion or memorandum containing some apparently directive or dispositive
words, e. g., 'the plaintiff's motion [for summary judgment] is granted,' see
United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct.
674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or
memoranda as being in themselves a sufficient basis for entering judgment in
the civil docket as provided by Rule 79(a). However, where the opinion or
memorandum has not contained all the elements of a judgment, or where the
judge has later signed a formal judgment, it has become a matter of doubt
whether the purported entry of a judgment was effective, starting the time
running for post-v rdict motions and for the purpose of appeal. . . .
10
The Federal Rules of Civil Procedure are to be "construed to secure the just,
speedy, and inexpensive determination of every action." In Foman v. Davis,
371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), this Court was asked to
apply Rule 73 which, as then written, provided that an appeal was to be taken
"by filing with the District Court a notice of appeal," which notice "shall
designate the judgment or part thereof appealed from." Under Rule 73 it was
clear that the filing of a notice of appeal was "jurisdictional," and the contents
of the notice of appeal were prescribed in the Rule. This Court nonetheless held
in Foman that a notice of appeal from a denial of motions to vacate a judgment
and to amend the complaint was, in view of an earlier and premature notice of
"The defect in the second notice of appeal did not mislead or prejudice the
respondent. With both notices of appeal before it (even granting the asserted
ineffectiveness of the first) the Court of Appeals should have treated the appeal
from the denial of the motions as an effective, although inept, attempt to appeal
from the judgment sought to be vacated." 371 U.S., at 181, 83 S.Ct., at 229.
12
The same principles of commonsense interpretation that led the Court in Foman
to conclude that the technical requirements for a notice of appeal were not
mandatory where the notice "did not mislead or prejudice" the appellee
demonstrate that parties to an appeal may waive the separate-judgment
requirement of Rule 58. "It is too late in the day and entirely contrary to the
spirit of the Federal Rules of Civil Procedure for decisions on the merits to be
avoided on the basis of such mere technicalities." 371 U.S., at 181, 83 S.Ct., at
230.
13
Here, the District Court clearly evidenced its intent that the opinion and order
from which an appeal was taken would represent the final decision in the case.
A judgment of dismissal was recorded in the clerk's docket. And petitioner did
not object to the taking of the appeal in the absence of a separate judgment.
Under these circumstances, the parties should be deemed to have waived the
separate-judgment requirement of Rule 58, and the Court of Appeals properly
assumed appellate jurisdiction under 1291.
14
Although we conclude that the Court of Appeals did have appellate jurisdiction
to pass on the merits of this case, we do not reach them. At oral argument,
counsel for respondents took the position that "the mere release of a pledge is
[not] a sale." Tr. of Oral Arg. 32. Counsel urged that the judgment of the Court
of Appeals be affirmed on a theory which differed from the reasoning of the
Court of Appeals in reversing the District Court. Because of the change in the
posture of the case between the time of the decision of the Court of Appeals and
its presentation to us for decision, we dismiss the writ of certiorari as having
been improvidently granted.
15
Dismissed.
16
Respondents appealed from a combined opinion and order of the District Court
dated September 30, 1975. In the relatively lengthy opinion, the District Court
granted petitioner's motion to dismiss the claim for failure to state a federal
claim upon which relief could be granted and then concluded: "Complaint
dismissed in its entirety. So ORDERED." On the same day, an entry was made
on the District Court docket reading, "Complaint dismissed in its entirety. So
Ordered. Pollack, J. (mn)."
See, e. g., Lyons v. Davoren, 402 F.2d 890 (CA1 1968); Sassoon v. United
States, 549 F.2d 983 (CA5 1977); Richland Trust Co. v. Federal Ins. Co. , 480
F.2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F.2d
18 (CA7 1968); Baity v. Ciccone, 507 F.2d 717 (CA8 1974); Baker v. Southern
Pac. Transp., 542 F.2d 1123 (CA9 1976). But see W. G. Cosby Transfer &
Storage Corp. v. Froehlke, 480 F.2d 498, 501 n. 4 (CA4 1973).
pursuant to Rule 79 fulfills a public recordkeeping function over and above the
giving of notice to the losing party that a final decision has been entered against
it. A judgment of dismissal was entered in this case below. See n. 1, supra.
5
Nor would strict compliance with the separate-judgment requirement aid in the
court of appeals' determination of whether the decision of the District Court
was "final" for purposes of 1291. Even if a separate judgment is filed, the
courts of appeals must still determine whether the district court intended the
judgment to represent the final decision in the case. Cf. United States v. Hark,
320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944).
While our decision in Indrelunas is consistent with the result we reach today,
the beginning paragraph of Indrelunas could be read as holding that a separate
judgment must be filed in compliance with Rule 58 before a decision is "final"
for purposes of 1291. In Indrelunas, we noted that since both parties
conceded "that the jurisdiction of the Court of Appeals was based on the
provisions of 28 U.S.C. 1291, making final decisions of the district courts
appealable, the correctness of the Court of Appeals' decision depends on
whether the District Court's judgment of February 25, 1971, was a final
decision. That question, in turn, depends on whether actions taken in the
District Court previous to the February date amounted to the 'entry of judgment'
as that term is used in Fed.Rule Civ.Proc. 58." 411 U.S., at 216, 93 S.Ct., at
1562. o the extent the above passage is inconsistent with our decision today, we
disavow it.